IP Facts & Fiction

Myths about Patents2018-12-12T14:02:46+00:00

Myths about Patents

Fiction: I have a patent that protects my invention throughout the world.

Fiction

I have a patent that protects my invention throughout the world.

Facts

There is no such thing as a ‘world patent’. Although there has been discussion amongst member states, about the creation of an ‘EU Patent’, the legislation to enact the same has not been agreed.

Explanation

The system of patent protection is territorial. In order to obtain patent protection throughout the world, an inventor must apply for a patent in each country or jurisdiction where patent protection is sought.

 

Fiction: I am using old technology so I don’t have to worry about patents.

Fiction

I am using old technology so I don’t have to worry about patents.

Facts

Older technology may infringe an older patent.

Explanation

A patent can last for up to 20 years from the filing date.

 

Fiction: Once a patent has been granted, it cannot be invalidated.

Fiction

Once a patent has been granted, it cannot be invalidated.

Facts

If prior art is found subsequent to the grant of a patent, a granted patent may be invalidated. Patents are often found to be invalid as part of infringement proceedings in the UK.

Explanation

When examining the patent application, the relevant examination board may not find and consider all relevant prior art.

 

Fiction: I have read the specification of the patent and do not do a lot of what is discussed, so I do not infringe that patent.

Fiction

I have read the specification of the patent and do not do a lot of what is discussed, so I do not infringe that patent.

Facts

The claims of the patent, not the specification, define the scope of the invention.

Explanation

Although a patent should always be read as a whole, it is the claims of the patent that are considered in an infringement analysis.

 

Fiction: Most of my products are only improvements on existing technology so patents are not available to me.

Fiction

Most of my products are only improvements on existing technology so patents are not available to me.

Facts

You do not need a major breakthrough to obtain a patent.

Explanation

Most patented inventions are improvements on or to existing technology.

 

Fiction: I develop software so patents are not available to me.

Fiction

I develop software so patents are not available to me.

Facts

Software related inventions can be the subject of patent protection in certain circumstances and jurisdictions.

Explanation

Software is patentable subject matter in Australia, in the US and increasingly in Europe.

 

Fiction: My computer program is protected by copyright so I can’t get a patent on it.

Fiction

My computer program is protected by copyright so I can’t get a patent on it.

Facts

Copyright protection and, in certain circumstances, patent protection are both available for software.

Explanation

A patent complements copyright protection, it does not replace it.

 

Fiction: A patent gives me the right to do what is stated in my patent.

Fiction

A patent gives me the right to do what is stated in my patent.

Facts

A patent is a negative right, in that it provides the owner with the right to prevent or exclude someone else from manufacturing, licensing, selling, importing or using the patent or patented goods or process

Explanation

A patent does not give the patent owner the right to do what is claimed in the patent. It is not 100% guaranteed.

 

Fiction: I found patented technology that I wish to use – I will obtain a licence to use it.

Fiction

I found patented technology that I wish to use – I will obtain a licence to use it.

Facts

The patent owner has the choice whether or not to grant a licence to patented technology.

Explanation

Although in the UK, the Patents Act 1977 (s.48) does provide for a third party to apply for the grant of a compulsory patent licence in certain circumstances, particularly where patented technology is not being exploited and where the demand for a patented invention is not being met on reasonable terms.

 

Fiction: It takes years to obtain a patent, so by the time my patent has been granted, my technology will be out of date.

Fiction

It takes years to obtain a patent, so by the time my patent has been granted, my technology will be out of date.

Facts

Often technology remains of value for many years after the patent has expired

Explanation

It can take more than two years to obtain a standard patent in the UK. If your invention will definitely be outdated in that time, you may wish to consider applying for a registered design, or consider other forms of IP protection.